Appeal from Circuit Court of Champaign County No. 98CM1105 Honorable Jeffrey B. Ford, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
In November 1998, a jury convicted defendant, Robert Francis, of aggravated assault (720 ILCS 5/12-2(a)(1) (West 1998)). The trial court later sentenced him to probation subject to certain conditions. Defendant appeals, arguing that the trial court erred by refusing his request to instruct the jury on self-defense. Because we agree, we reverse and remand for a new trial.
The aggravated assault charge against defendant alleged that on September 1, 1998, he, in committing an assault, used a deadly weapon, "in that he knowingly pointed a knife at Donald Maybell and swung the knife at Donald Maybell, thereby placing Donald Maybell in reasonable apprehension of receiving a battery." At defendant's trial, Maybell testified as follows concerning the September 1 incident.
Maybell and defendant lived in the same neighborhood and occasionally socialized together. Sometime before September 1, Maybell loaned defendant $170. Defendant promised Maybell that he would pay him back on September 1, when defendant expected to receive his disability check.
On September 1, Maybell visited defendant's residence to ask about the money he was due. Defendant told Maybell that the state had "messed his check up" and he had not received it.
Maybell returned to his home, where Thomas Johnson was visiting with Maybell's girlfriend and her two children. Sometime later, Maybell noticed defendant's wife, Emma, from whom defendant was separated, pick defendant up from his residence and drive away. Maybell had noticed that Emma usually picked defendant up on the days that he received his check from the state. Because Maybell did not believe that defendant had not received his check, he decided to follow Emma's vehicle. Johnson joined him.
Emma drove to a grocery store that had a bank inside. When defendant got out of Emma's vehicle and went inside the store, Maybell asked Johnson to go inside to see if defendant cashed a check. Johnson entered the store and, when he returned, he told Maybell that defendant had cashed a check.
At that point, Maybell saw defendant leaving the store and blew his car horn. Defendant went over to Maybell's vehicle, swore at Maybell, and accused Maybell of following him. Maybell responded that he just wanted his money and believed defendant had received his check.
Defendant screamed at Maybell, "You don't know who you are fucking with." He then pulled a knife from his back pocket and unfolded it. Maybell stepped out of his vehicle, put his arms in the air, and screamed "at the top of [his] lungs, 'I'm not threatening this man and this man has a knife on me.'" Defendant pointed the knife at Maybell and made some swinging motions in the direction of Maybell's face and stomach. Although the knife never actually touched Maybell, he described it as "about a ½ inch away, something like that." At the same time, defendant kept repeating, "Do you know who you are fucking with? I'll kill you."
While this was going on, Johnson got out of Maybell's vehicle, and Maybell told him to get back in. Johnson complied. While Johnson was out of the vehicle, he neither threatened defendant nor displayed any weapon.
When Maybell could see the police speeding toward the grocery store, defendant put the knife away and got into Emma's vehicle. When the police arrived, Maybell and Johnson cooperated and told them what had happened.
Marsha Crane, who was present in the grocery store parking lot on the day in question and not acquainted with either defendant or Maybell, testified to hearing "unpleasant, fighting language" in the parking lot and seeing two men "in each other's face," engaged in a "loud and ugly" argument. She saw that defendant was holding a big knife that looked "like a dagger" under the rib cage of the other man. The knife was not quite touching him, but it looked like defendant "was going to stab" the other man, who was holding his arms straight up in the air. As the police arrived, Crane saw defendant run to another vehicle that then drove away. During the argument, Crane noticed another man in the background. Although she "wasn't focused on him," she said that he was watching the fight and did not seem to be doing anything threatening.
The police arrested defendant a short distance from the grocery store and found a knife inside his wife's car. Both Crane and Maybell identified the knife as the one they saw defendant with on September 1.
Defendant testified as follows. He was 54 years old at the time of trial and was receiving disability benefits due to job-related injuries to his legs. Because of those injuries, he cannot walk or stand for long periods of time, and he cannot run at all. He receives two monthly disability payments: $98 on the first of the month and $410 on the third. On September 1, 1998, Maybell and Johnson came to defendant's residence, and Maybell argued with defendant about the money defendant owed him. Defendant said that he would pay Maybell on the third of the month, when he received the larger check, just as defendant had in the past when he had previously borrowed money from Maybell. A loud argument ensued and, as Maybell was leaving, he told defendant that Maybell was "going to get [his] money or else."
Emma, who was present during the argument, then drove defendant to the grocery store so that he could cash his check at the bank inside. While at the bank, defendant noticed Johnson watching him. Defendant described Johnson as in his early thirties.
After defendant cashed his check, he left the store, and Johnson ran out in front of him. As defendant walked into the parking lot, Maybell's vehicle drove up and stopped, and Maybell got out. Maybell walked toward defendant, while Johnson walked behind defendant, getting "pretty close." Maybell said, "We are going ...